The personal blog of Peter Lee a.k.a. "China Hand"... Life is a comedy to those who think, a tragedy to those who feel, and an open book to those who read. You are welcome to contact China Matters at the address chinamatters --a-- prlee.org or follow me on twitter @chinahand.

Friday, June 21, 2013

Edward Snowden and the NSA's Three Wise Whistleblowers

[This piece originally appeared at Asia Times Online on June 21, 2013. It can be reposted if ATOl is credited and a link provided. Thanks to some missed connections during the editing process, in one passage in the ATOl piece, the Daily Caller is misidentified as the Daily Beast...and in another passage the Daily Caller is mischaracterized as the online successor to Newsweek, no doubt causing both Tina Brown and Tucker Carlson to weep bitter tears. I've corrected it here and ATOl will presumably correct their version in the next day or two.]

Whistleblowing is a risky business.

I expect that, as they planned their
course of action over the four months, Edward Snowden and his main
media minder, Glenn Greenwald, paid very close attention to what
happened to three past whistleblowers who crossed the NSA. And looking
at these three men gives an idea of the interests, principles and powers
that are being contested beneath the superficially simple tale of a
young analyst who fled to Hong Kong to tell the world about runaway US
government surveillance.

There is no evidence to suggest that the three whistleblowers, who convincingly say that they live under the closest US government surveillance, had any prior knowledge of
Snowden's exploit; but there are considerable indications that his
situation and the information he holds are the focus of their concern
and, in turn, Snowden was guided by their example and experiences.

There are three well-known NSA whistleblowers: Bill Binney, J Kirk
Wiebe, and Tom Drake. They were whistleblowers in the legal sense -
they reported to the Inspector General of the Department of Defense and,
subsequently, oversight committees of the US Congress that a
multi-billion dollar NSA data collection program known as Trailblazer
was ineffective and wasteful and another one, Stellar Wind, had been
programmed to strip out procedures that prevented acquisition of the
data of US citizens (and assured the constitutionality of the program).

These three gentlemen were not, with all due respect to Edward Snowden,
pimply-faced junior techs with pole-dancer girlfriends.

Drake had spent
12 years at NSA and, before that, 10 years in the Air Force specializing
in intelligence.

Bill Binney had worked for the NSA for 30 years and had risen to the
position of Technical Director of the World Geopolitical and Military
Analysis Reporting Group.

Wiebe had worked for the NSA for 30 years, was awarded the NSA's
Meritorious Civilian Service Award, and finished out his career as
senior analyst.

Pure organization men, Binney, Wiebe, and Drake followed the chain of
command and the procedures for whistleblowing - and passed no classified
information to the press. Yet they were undone by the hostility of the
NSA.

The NSA, under Michael Hayden, is generally considered to have blown it
by not picking up the 9/11 conspiracy. Binney and Wiebe rubbed salt
into the wound by telling Congress that the NSA's decision to go with
Trailblazer was responsible.

Hayden, fulminating, sent out a memo declaring that "individuals, in a
session with our congressional overseers, took a position in direct
opposition to one that we had corporately decided to follow ... Actions
contrary to our decisions will have a serious adverse effect on our
efforts to transform NSA, and I cannot tolerate them."

Binney, Wiebe, and Drake's complaints became public knowledge in 2007,
after the Bush administration searched for the sources of an unrelated
leak to the New York Times' James Risen for his expose of illegal NSA
surveillance of US citizens.

Well, they came in, and there were like 12 FBI agents with
their guns drawn, and came in. My son opened the door, let them in, and
they pushed him out of the way at gunpoint. And they came upstairs to
where my wife was getting dressed, and I was in the shower, and they
were pointing guns at her, and then they - one of the agents came into
the shower and pointed a gun directly at me, at my head, and of course
pulled me out of the shower. So I had a towel, at least, to wrap around,
but - so that's what they did.

And then they took me out and interrogated me on the back porch. And
when they did that, they tried to get me - they said they wanted me to
tell them something that would be - implicate someone in a crime. ... I
said I didn't really know about anything. And they said they thought I
was lying. Well, at that point, "OK," I said, "I'll tell you about the
crime I know about," and that was that Hayden, Tenet, George Bush, Dick
Cheney, they conspired to subvert the constitution and the
constitutional process of checks and balances

Wiebe and Drake's experiences were similar. None of them were implicated in the leak.

In 2010, Binney and Wiebe finally received Letters of Immunity from the
Justice Department confirming their whistleblower protection. Drake,
however, was less fortunate. After being threatened with spending "the
rest of his natural life behind bars" if he didn't provide information
on the source of the leak to the New York Times, and several years in
the NSA/Department of Justice wringer, he was finally indicted and put
on trial.

In 2011, Drake - having by now left the NSA to work in the local
Apple store - rejected two plea deals
offered by the government and finally settled for no admission of
sharing classified information and one year of probation and community
service for "exceeding authorized use of a computer".

This reminds me of a cartoon strip about Dilbert accepting a misdemeanor
plea of "lewd conduct with appliances" after being falsely accused of stealing a computer.

As to the question of whether Snowden should have worked within the
system as they had, the three NSA men were strikingly straightforward in
an interview with USA Today:

Q: Did Edward Snowden do the right thing in going public?

William Binney: We tried to stay for the better part of seven
years inside the government trying to get the government to recognize
the unconstitutional, illegal activity that they were doing and openly
admit that and devise certain ways that would be constitutionally and
legally acceptable to achieve the ends they were really after. And that
just failed totally because no one in Congress or - we couldn't get
anybody in the courts, and certainly the Department of Justice and
inspector general's office didn't pay any attention to it. And all of
the efforts we made just produced no change whatsoever. All it did was
continue to get worse and expand.

Q: So Snowden did the right thing?

Binney: Yes, I think he did.

Q: You three wouldn't criticize him for going public from the start?

J. Kirk Wiebe: Correct.

Binney: In fact, I think he saw and read about what our experience was, and that was part of his decision-making.

Wiebe: We failed, yes.

Looking at what happened to the NSA's three wise men, it would appear
very unlikely that Snowden, a wet-behind-the-ears grunt in the infowars,
could get a private or public hearing in the United States for his
complaints about the NSA before he disappeared beneath an FBI dogpile
... or worse, in the opinion of the three:

Q: What should Edward Snowden expect now?

Binney: Well, first of all, I think he should expect to be
treated just like Bradley Manning [an army private now being
court-martialed for leaking documents to WikiLeaks]. The US government
gets ahold of him, that's exactly the way he will be treated.

Q: He'll be prosecuted?

Binney: First tortured, then maybe even rendered and tortured and then incarcerated and then tried and incarcerated or even executed.

Wiebe: Now there is another possibility, that a few of the good
people on Capitol Hill - the ones who say the threat is much greater
than what we thought it was - will step forward and say give this man
an honest day's hearing. You know what I mean. Let's get him up here.
Ask him to verify, because if he is right - and all pointers are that
he was - all he did was point to law-breaking. What is the crime of
that?

Drake: But see, I am Exhibit No. 1. ...You know, I was charged
with 10 felony counts. I was facing 35 years in prison. This is how far
the state will go to punish you out of retaliation and reprisal and
retribution. ... My life has been changed. It's been turned inside,
upside down. I lived on the blunt end of the surveillance bubble. ...
When you are faced essentially with the rest of your life in prison, you
really begin to understand and appreciate more so than I ever have -
in terms of four times I took the oath to support the Constitution -
what those rights and freedoms really mean. ...

Believe me, they are going to put everything they have got to get him. I
think there really is a risk. There is a risk he will eventually be
pulled off the street.

There is another reason to pay attention to Binney, Wiebe, and Drake.

Binney and Wiebe are experts in - perhaps even invented - the automated
surveillance techniques Snowden is talking about. Binney, in particular,
is described as a brilliant crypto-analyst - "regarded as one of the
best code breakers and mathematicians in the NSA's history", according
to a documentary film by Laura Poitras - who came up with the automated
distributed data analysis solution, ThinThread, that correlated data to
targets in real time and only forwarded relevant hits to the NSA
mothership.

This is in contrast to Trailblazer, which vacuumed up everything and
sent it home in the hope that the data could be mined retroactively, but
in time to reveal some dangerous plots.

Binney's opinion that ThinThread could have stopped 9/11 - if Hayden
hadn't stopped ThinThread in 2000 and proceeded with Trailblazer instead
- certainly contributed to the rancor with which the NSA pursued
Binney.

Jane Meyer reported in the New Yorker
that, in one of life's little ironies, as Trailblazer was headed to the
intel boneyard post-9/11 as an unworkable, over-budget boondoggle, the
NSA allegedly picked up Binney's ThinThread, stripped out the code which
encrypted the data of US citizens until a warrant was obtained, and
started running it under the codename Stellar Wind for targeted and
unwarranted surveillance of US citizens as well as foreign subjects.
Thereby, "violation of the Fourth Amendment right to protection
from unreasonable search and seizure" was added to "fraud, waste, and
mismanagement" on Binney's menu of grievances against the NSA.

Daily Caller: But what universe of information are we talking about that's available to the NSA?

Binney: The former FBI agent, Tim Clemente, says they can get
access to the content of any audio, any phone call. He says that there
are no digital communications that are safe or secure. So that means
that they were tapping into the databases that NSA has. For the recorded
audio, and for the textual materials like emails and phone.

Daily Caller: All textual material?

Binney: Any kind of textual material is relatively easy to get.
The audio is a little more difficult. Now I don't think they're
recording all of it; there are about 3 billion phone calls made within
the USA every day. And then around the world, there are something like
10 billion a day. But, while they may not record anywhere near all of
that, what they do is take their target list, which is somewhere on the
order of 500,000 to a million people. They look through these phone
numbers and they target those and that's what they record.

Daily Caller: There's been some talk about the authorities having
a recording of a phone call [alleged Boston marathon bomber] Tamerlan
Tsarnaev had with his wife. That would be something before the bombing?

Binney: Before the bombing, yes.

Daily Caller: Then how would they have that audio?

Binney: Because the NSA recorded it.

Daily Caller: But apparently the Russians tipped off the FBI,
which then did a cursory interview and cleared him. So how were they
recording him?

Binney: Because the Russians gave a warning for him as a target.
Once you're on a list, they start recording everything. That's what I'm
saying.

Daily Caller: So why didn't they prevent the bombing?

Binney: Once you've recorded something, that doesn't mean they
have it transcribed. It depends on what they transcribe and what they do
with the transcription. ... They can do textual processing at a rate of
about 10 gigabits a
second. What that means is about a million and a quarter 1,000-character
emails a second. They've got something like 10 to 20 sites for this
around the United States. So you can really see why they need to build
something like Utah to store all of this stuff. But the basic problem is
they can't figure out what they have, so they store it all in the hope
that down the road they might figure something out and they can go back
and figure out what's happening and what people did. It's retroactive
analysis. The FBI is using it that way too.

Daily Caller: Can you do that for audio? Can they retroactively
put together the conversation we're having right now? Suppose nobody
from the government is taping this conversation right now. Is there any
way they can go back and reconstruct it?

Binney: Well I think I'm on a target list, so anybody that my phone calls, they will be recorded. So yeah.

Daily Caller: Does this mean that my phone number is now going to be on a list?

Binney: You are now part of my community, so you can assume you are now going to be targeted, too.

As for Snowden's assertion that he could listen to the phone calls of
anyone in the United States, including the president, it's a question of
admin privileges, according to Binney (from USA Today):

So that meant he had access to go in and put anything.
That's why he said, I think, "I can even target the president or a
judge." If he knew their phone numbers or attributes, he could insert
them into the target list which would be distributed worldwide. And then
it would be collected, yeah, that's right. As a super-user, he could do
that.

The third reason to pay attention to Binney, Wiebe, and Drake is that they seem to be trying to coach Snowden on the best way to
avoid the most dire legal and public relations jeopardy (from USA Today):

Q: What would you say to him?

Binney: I would tell him to steer away from anything that isn't a
public service - like talking about the ability of the US government
to hack into other countries or other people is not a public service. So
that's kind of compromising capabilities and sources and methods,
basically. That's getting away from the public service that he did
initially. And those would be the acts that people would charge him with
as clearly treason.

Drake: Well, I feel extraordinary kinship with him, given what I
experienced at the hands of the government. And I would just tell him to
ensure that he's got a support network that I hope is there for him and
that he's got the lawyers necessary across the world who will defend
him to the maximum extent possible and that he has a support-structure
network in place. I will tell you, when you exit the surveillance-state
system, it's a pretty lonely place - because it had
its own form of security and your job and family and your social
network. And all of a sudden, you are on the outside now in a
significant way, and you have that laser beam of the surveillance state
turning itself inside out to find and learn everything they can about
you.

Wiebe: I think your savior in all of this is being able to
honestly relate to the principles embedded in the constitution that are
guiding your behavior. That's where really - rubber meets the road, at
that point.

A few inferences we can draw:

First, Snowden gave considerable thought to the consequences of his
revelations (something which has inexplicably escaped certain critics,
such as The Daily Banter's Oliver Willis - motto: "Like Kryptonite to
stupid" - who characterized Snowden as a "childish simpleton").

Second, if he had stayed in the US and tried to pursue the legal
whistleblower route - which protects NSA employees who report their
concerns about illegal behavior, fraud, abuse, and mismanagement to the
Inspector General and the relevant congressional oversight committees,
but specifically forbids them to go public - he would have
gotten nowhere.

Third, his best option was to go overseas, beyond the reach of the FBI,
and publicize his information and gain sympathy for himself and his
cause, perhaps hoping that, as in the case of Thomas Drake, the Obama
administration would find it politically awkward to pursue the
maximalist criminal case.

Fourth, when reviewing his overseas options, he wanted to establish
himself in a jurisdiction less vulnerable to US government pressure. For
this reason, he ruled out Iceland (and Iceland has apparently ruled out
Snowden; the Iceland government declined to meet with Snowden's
intermediary and said that Snowden could only apply for asylum if he was
already in Iceland).

Quite possibly, he chose Hong Kong both for its laudable freedom of
speech/rule of law credentials, and also because, as an ex-CIA employee
who had worked briefly on the covert side (and made a point of stating
he knew where the CIA Hong Kong station was located), he regarded Hong
Kong as a jurisdiction in which the PRC does not cooperate with the CIA
very actively and may, in fact, keep their people on a relatively tight
leash.

Also, asylum requests in Hong Kong are handled by the local office of the UN Human Rights Council, not the SAR itself. Perhaps this unique wrinkle in the Hong Kong asylum process had more than a little to do with Snowden's decision to go there.

The UNHCR's concern about the treatment of Wikileaks whistleblower
Bradley Manning invites speculation that its local office might
eventually approve a request by Snowden for asylum against a US
extradition demand on the grounds that he is at risk of persecution, not
just prosecution in the United States.

After all, the UN Special Rapporteur for Human Rights, Juan Mendez,
reports to the UNHRC and is on record characterizing the treatment of
Bradley Manning at Quantico as follows:
"I conclude that the 11 months under conditions of solitary confinement
(regardless of the name given to his regime by the prison authorities)
constitutes at a minimum cruel, inhuman and degrading treatment in
violation of article 16 of the convention against torture. If the
effects in regards to pain and suffering inflicted on Manning were more
severe, they could constitute torture."

Fifth, in order to retain the sympathy of the "few good men" inside the
national security apparatus and supporters in the media and public - and
to forestall a domestic witchhunt - it would be important not to
disclose operational details of NSA operations that might open him to
the charge, no matter how specious, that he was helping the "bad guys"
evade US surveillance.

It seems Snowden has done this; in fact, pundits looking for smoking gun
revelations have been frustrated with the vagueness with which he has
described the PRISM program and other surveillance techniques.

Parenthetically, Binney had this to say about the "helping the enemy" issue in his Daily Caller interview:

Q: Did foreign governments, terrorist organizations, get information they didn't have already?

Binney: Ever since ... 1997-1998 ... those terrorists have known
that we've been monitoring all of these communications all along. So
they have already adjusted to the fact that we are doing that. So the
fact that it is published in the US news that we're doing that, has no
effect on them whatsoever. They have already adjusted to that.

Sixth, Snowden and Glenn Greenwald understand the importance of
sustaining media heat and public interest in his case by dribbling out
sensational revelations - while trying not to compromise his "American
patriot" cred.

So, while one would expect that US spying on international gabfests
would be expected, Snowden exposed non-US activity: the pervasive
surveillance regime instituted by the British government targeting
foreign dignitaries and their staffs attending the Group of 20
conference in the UK last September.

Seventh, I believe that Snowden wants to very carefully pressure the US
government by increasing its anxiety that he a) has information
interesting to the PRC, and b) is currently gallivanting around in a PRC
Special Administrative Region vulnerable to whatever skullduggery the
Chinese might unleash, either during his residence or when his 90-day
visa expires mid-August.

The Snowden-in-Hong Kong situation certainly raised hackles in the
United States, particularly among the less informed for whom the
distinction between Hong Kong and the People's Republic of China (and,
for that matter, between the South China Morning Post and some Red
Chinese broadsheet) is considerably less than a clear, bright line, and
even Bill Binney expressed his anxiety about what Snowden might be
telling the Chinese:

Q: There's a question being debated whether Snowden is a hero or a traitor.

Binney: Certainly he performed a really great public service to
begin with by exposing these programs and making the government in a
sense publicly accountable for what they're doing. At least now they are
going to have some kind of open discussion like that. But now he is
starting to talk about things like the government hacking into China and
all this kind of thing. He is going a little bit too far.

I don't think he had access to that program. But somebody talked to him
about it, and so he said, from what I have read, anyway, he said that
somebody, a reliable source, told him that the US government is hacking
into all these countries. But that's not a public service, and now he is
going a little beyond public service. So he is transitioning from
whistle-blower to a traitor.

As far as Dick Cheney is concerned, of course, Snowden has already completed the journey.

To which Snowden riposted:

Being called a traitor by Dick Cheney is the highest honor you can give an American.

I think in his interview with the South China Morning Post, Snowden was,
as usual, trying to use the sizzle to sell the steak, intentionally
vague in his responses, resorting to generalities, repeating details in
the public domain, and not handing over documentation that might turn
out to be legally compromising to his case (one interested Hong Kong
legislator commented that Snowden's allegations so far "are noticeably lacking in details or evidence.")

Snowden said that according to unverified documents seen by
the Post, the NSA had been hacking computers in Hong Kong and on the
mainland since 2009. None of the documents revealed any information
about Chinese military systems, he said.

One of the targets in the SAR, according to Snowden, was Chinese
University and public officials, businesses and students in the city.
The documents also point to hacking activity by the NSA against mainland
targets.

Snowden believed there had been more than 61,000 NSA hacking operations
globally, with hundreds of targets in Hong Kong and on the mainland.

"We hack network backbones - like huge Internet routers, basically -
that give us access to the communications of hundreds of thousands of
computers without having to hack every single one," he said.

In what was probably more unwelcome news for the United States, the UN
Human Rights Council local office told the South China Morning Post it
might take the UNHRC months to shuffle Snowden's asylum paperwork to the
top of the pile if he decided to apply:

Farooqi [a protection officer at the Hong Kong UNHRC office]
said because the city has no asylum-screening system, applicants whose
tourist visas have expired are usually detained at an immigration centre
while their documents are verified. Applications can be made to the
UNHCR for asylum at any time. The period of detention usually ranges
from a few weeks to a few months, but can be longer, the UNHCR says.

What would happen to Snowden's four laptops, purportedly jammed with
interesting information (encrypted? unencrypted?) if he was detained by
the Hong Kong government prior to deportation or extradition? Enquiring
minds want to know.

For the time being, the PRC government is happy to keep its head down
and let the US government writhe on the forked stick of its predicament.

In their public statements, Snowden and the three whistleblowers declare
their belief that the NSA has misled congress and the president,
implying there is wriggle room for President Obama to mitigate the
abuses of the US surveillance state - and recognize Edward Snowden in a
role other than that of thief or traitor. It remains to see if this
fond hope is rewarded.

Exactly how this plays out - and whether the public goes along with the
Snowden-as-Chinese-spy narrative - is open to conjecture. In a USA
Today/PEW poll released on June 17,
54% said Snowden should be prosecuted, with 34% saying no. As to
whether the revelations served the public interest, 49% said yes and 44%
said no.

The situation is fluid, and a mis-step by Snowden - or overreach by the
US government - could send public opinion tilting either way.

The way
the pendulum swings may determine whether Snowden gets asylum in Hong
Kong - or a favorable plea bargain in the United States and US
government re-evaluation of the pervasive NSA surveillance regime that
he says he desires - or extradition and long, hard time in a US
penitentiary.

It is possible that Binney, Wiebe, and Drake will continue to give the
pendulum a push toward Snowden in order to use his notoriety to gain
public accountability for a government program that they believe is
profoundly unconstitutional.

Laura Poitras, the filmmaker who produced Snowden's video interview with
the Guardian (and co-bylined Snowden stories in the Guardian and the
Post) was also the first person Snowden contacted when he decided to go
public - because she had made a short film about Bill Binney and Stellar
Wind, The Program, that was posted on the New York Times in 2012, and
had described her personal experience of being on a government watch
list in the accompanying article:

To those who understand state surveillance as an
abstraction, I will try to describe a little about how it has affected
me. The United States apparently placed me on a "watch-list" in 2006
after I completed a film about the Iraq war. I have been detained at the
border more than 40 times. Once, in 2011, when I was stopped at John F
Kennedy International Airport in New York and asserted my First
Amendment right not to answer questions about my work, the border agent
replied, "If you don't answer our questions, we'll find our answers on
your electronics."

He told me he'd contacted me because my border harassment
meant that I'd been a person who had been selected. To be selected -
and he went through a whole litany of things - means that everything
you do, every friend you have, every purchase you make, every street you
cross means you're being watched. "You probably don't like how this
system works, I think you can tell the story."

Poitras is now working on a documentary about Snowden.

This is the story that the Obama administration is trying to make
smaller, about Edward Snowden, the rogue analyst, the "childish
simpleton".

In his most detailed defense of the system so far, in Germany, President Obama has decided to acknowledge the NSA's capabilities
but hang his hat on the legal process ostensibly underpinning the
surveillance, a "circumscribed, narrow system, directed at us being able
to protect our people and all of it is done with the oversight of the
courts".

By moving the debate away from the universe of tens of thousands of
leak-prone analysts to the privileged and murky world of the allegedly
rubber-stamp FISA court, President Obama perhaps expects he can keep the
NSA story bottled up.

But there are some smart, connected, and
determined people - starting with, but probably not limited to Binney,
Wiebe, Drake, Greenwald, and Poitras - out there who want to make the
story bigger.

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